Visa cancellations can be difficult for anyone to process emotionally and mentally, but when time comes to act on legal matters such as this, it's important not to put off seeking advice from an expert who knows what they're doing. Even if you've already been granted your visa and think everything's fine, there are still many potential complexities involved with securing visas in Australia that may require further advice or clarification from an experienced immigration lawyer before any final decisions are made.
Introduction
A visa is a mere permit granted by the Australian government upon your application. As the word “application” suggests, the process requires your provision of information and documents to satisfy the Australian government, which will assess and grant the visa you sought. If everything goes smoothly, the visa you hold will allow you to travel to Australia, stay in Australia, and even make further visa applications in and out of Australia. But if certain things happen to you or your visa application, the Department of Home Affairs can cancel your visa. This means that you can’t stay in Australia and will have to leave. Please keep in mind that a visa, whether temporary or permanent, is a permit that can be revoked.
What 'Visa Cancelled' Means
The minute your visa is cancelled, you become an unlawful non-citizen, and Australian law requires such an unlawful non-citizen to be detained and removed from Australia. (More than a decade ago, there was a well-known automatic cancellation mechanism. However, due to its drastic nature, such an automatic visa cancellation provision has been removed.)
Cancellation means what’s given to you has been dissipated. A visa is a permit for you to come to and stay in Australia. The cancellation of such a visa means that the permission has been revoked and you are now unlawfully present in Australia. As the potential consequence is extreme, such a cancellation does not randomly occur, and an exercise of such a great cancellation power must comply with stringent procedures.
Having said that, the average number of visa cancellations per year is more than 1,000. Taking into account subsequent cancellations, the figure will even rise. When thinking about the Australian visa system, the cancellation of visas is the most important thing to think about. Consequently, you are required to seek professional and expert legal advice immediately.
Your Visa Status After Cancellation
If your visa is cancelled, you will no longer have a valid substantive visa. That’s right. You have no visa to come to or stay in Australia. If you are already in Australia, your stay is unlawful. Putting aside philosophical differences between being illegal and being unlawful, Australian law says that an unlawful non-citizen must be found and sent back to their home country.
Even if you have not committed a crime by staying in Australia without a visa, the terminology “removal” does not sound good at all. To put it simply, a visa cancellation means you no longer have permission to be in Australia and must leave the country immediately.
Unless the visa cancellation is set aside at the Administrative Appeals Tribunal, it is final and will cause a 3-year ban (re-entry ban) in the usual circumstances. In the event that the original cancellation decision is set aside, the said cancellation is taken to have never happened, and your previous visa is automatically restored.
Grounds for Visa Cancellation
If your visa has been cancelled, there are several reasons why this could happen:
- You have failed to comply with the conditions of your visa (for example, not attending school courses).
- You provided incorrect information or documents during your application.
- This is one of the main grounds for cancellation. For example, if you stated that you were single when applying for a points-test skilled visa but then got married during the processing of your application and didn’t tell the Department about it until later on, in their audit process then they would cancel this kind of fraudulent activity as part of their investigation into whether it was actually true or not; similarly, if someone used someone else’s passport without their knowledge then this would also be considered fraudulent activity which could result in cancelling their Australian Visa (and possibly charging them with criminal offences too).
- Involvements in criminal activities are also common nowadays, as the Australian government is conscious of eradicating criminal activities and emphasising that Australian citizenship or permanent residency is a privilege not a right.
- If a visa is granted due to errors somehow, it can be cancelled even at a later stage.
- Certain visa requires visa holders to undertake certain activities under the law. If such undertaking is compromised, the government may cancel the visa as well.
Finally, a visa is a permit issued by the Australian government. Accordingly, if the law permits, the Australian government won’t hesitate to consider exercising its powers.
Procedures for Visa Cancellation
By its own volition, the Australian government may conduct regular audits, which are called “forensic investigations,” and depending on the nature of its findings, it may consider cancelling visas. In addition, owing to proactive dob-in activities, the Department also collects a huge volume of dubious visa-related actions, which may result in a consideration of cancelling someone’s visa.
By principle, Australian law allows a doctrine of procedural fairness. The most important part of procedural fairness is a detailed notice that gives the person in question a full explanation of the allegations. This particular notice is called “Notice of Intention to Consider Cancellation (NOICC).” If the person has the ability to comprehend the serious nature of such notice, he or she must seek professional legal advice immediately.
In general, the NOICC will elaborate on the grounds of cancellation and invite the visa holder to respond as to why he or she believes the said grounds do not exist. In the event that the grounds are admitted, the Department will also invite him or her to explain why their visas should not be cancelled on compelling and compassionate grounds.
After the formal response to the NOICC, the Department will make a final decision on whether to cancel or not. If the decision is to cancel the visa, it is immediately revoked, leaving the person without a valid visa. If the decision is not to cancel, the Department will issue a formal notice not to cancel. However, under the law, the Department has other powers to consider a cancellation, and given the nature of mutual exclusivity, they can still proceed to cancel the subject visa and may issue another NOICC under another provision.
In the event of a cancellation, the person may have to consider a merits review application at the Administrative Appeals Tribunal. Due to the nature of finality, he or she may have to seek expert legal representation.
Review Application
If you disagree with the decision to cancel your visa, you can file an appeal with the Administrative Appeals Tribunal (AAT). The beauty of merits review applications is that they can only be entertained by those who prepare properly. For example, if you don’t have enough evidence to prove your case but still want to apply, it’s likely that AAT will just uphold the original decision to cancel, since they don’t have more power than the Department’s delegate office. So, it’s important that you talk to a lawyer who has done merit review applications before to make sure that everything is taken care of and no mistakes are made.
Free Assessment Service
Visa Emergency
- Our team of Immigration Law experts diagnose your visa situation, and advise you of what immediate action is needed to save your visa or application.
- The Visa Emergency service provided by Park & Co Lawyers is different from the ordinary enquiry service. We deal with Immigration notices and determine what legal options you have.
- Whether it is a refusal, cancellation or inadvertent error made in a visa application, urgent waiver submissions or any immigration notice, our immigration experts will provide legal advice and assistance to you.
Expert Legal Representation, Not an Option but an Absolute Necessity
If your visa is in danger, you must get professional legal advice as soon as possible. If you are facing a possible cancellation and are unsure about how to proceed, a good place to start is by getting in touch with Park & Co Lawyers.
Visa cancellations can be difficult for anyone to process emotionally and mentally, but when time comes to act on legal matters such as this, it’s important not to put off seeking advice from an expert who knows what they’re doing. Even if you’ve already been granted your visa and think everything’s fine, there are still many potential complexities involved with securing visas in Australia that may require further advice or clarification from an experienced immigration lawyer before any final decisions are made.
At Park & Co Lawyers, we pride ourselves on offering exceptional service at all times—from initial consultation right through to settlement—and our experts will work with you every step of the way, guiding you through each stage so that nothing falls through the cracks along the way. We can offer assistance in different areas:
- Visas – including temporary visas (subclass 457, 482, 491, 494), permanent residence visas (subclass 189, 190, 186), and bridging visas;
- Cancellation – defending the government’s cancellation and legal representation at the AAT;
- Refusal – AAT representation;
Conclusion
If you receive a NOICC, it can be devastating. You may think that there is nothing you can do to remedy the situation. However, this is not the case! Our team of immigration lawyers is standing by to help you defend any visa cancellation on your behalf. We have years of experience dealing with this type of issue, and we know exactly what needs to be done for our clients. Most importantly, we want to help ease your anxiety and stress so that when push comes to shove—and it will—you won’t have any regrets about choosing us over another firm because they couldn’t offer what we do: compassion and understanding while also providing expert legal representation.
Written by Chang Park
If you have any enquiries, contact Chang at [email protected].
[ Park & Co Lawyers – Disclaimer ]
Please note that the above is to be taken as a general guide only, and does not constitute legal advice in any respect. It does not reflect any changes in the relevant law or authorities since the date of publication.
Our Team of Immigration Lawyers, led by Chang Min Park, an Accredited Specialist in Immigration Law, have many years of experience and have handled a wide range of complex cases.
We always welcome your enquiries, and we are more than happy to assist you.
Contact us: 07 3345 6665 / [email protected]
Website: https://parklawyers.com.au
